Michar and Baileford & Anor

[2019] FamCAFC 60

FAMILY COURT OF AUSTRALIA

MICHAR & BAILEFORD AND ANOR [2019] FamCAFC 60

FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the appellant father seeks to appeal an order made by the Federal Circuit Court of Australia dismissing his application for leave to have his child support liability reviewed – Where leave to appeal is required under s 102A of the Child Support (Assessment) Act 1989 (Cth) – Where the determination of leave requires consideration of the strength of the grounds of appeal – Where the application for leave and the appeal are heard together – Where the test set out in Medlow & Medlow (2016) FLC 93-692 is applied – Where the appellant demonstrates there has been an error of principle made by the primary judge and that he will suffer a substantial injustice if left unprosecuted – Where leave to appeal granted.

FAMILY LAW – APPEAL – CHILD SUPPORT – Where the appellant father contends the primary judge erred by refusing him leave to review his application under ss 111 and 112(1) of the Child Support (Assessment) Act1989 (Cth) – Where the respondent opposes the appeal – Where the Child Support Registrar neither supports nor opposes the appeal – Where the primary judge found a disparity between the appellant’s actual taxable income and his adjusted child support income – Where leave to apply was refused by the primary judge under s 111 of the Child Support (Assessment) Act 1989 (Cth) on the basis the appellant had failed to lodge the relevant tax returns – Where the primary judge’s determination of the appellant’s application was different from the approach foreshadowed to the parties at the hearing – Where the appellant was not afforded procedural fairness – Where the primary judge misapplied the statutory criteria under s 112 of the Child Support (Assessment) Act 1989 (Cth) – Appeal allowed – Where the order is set aside for re-hearing by a judge other than the primary judge.

FAMILY LAW – APPEAL – COSTS – Where leave to appeal granted and the appeal successful – Where the appellant did not seek costs against the respondent – Where the appellant sought a costs certificate – Where the Child Support Registrar was not entitled to a costs certificate under s 14 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the respondent had no costs to recoup – Where no reason to grant a costs certificate to the respondent – Where costs certificates granted to the appellant for the appeal and the re-hearing.

Child Support (Assessment) Act 1989 (Cth) s 102A, 111, 112, 116, 118
Federal Proceedings (Costs) Act 1981 (Cth) s 14

Eames & Eames (2018) FLC 93-866; [2018] FamCAFC 204
Faulkes & Tomkins (2018) FLC 93-854; [2018] FamCAFC 151
Lindsey & Christie [2016] FamCAFC 132
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
RCB v Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

APPELLANT: Mr Michar

FIRST RESPONDENT: Ms Baileford

SECOND RESPONDENT: Child Support Registrar

FILE NUMBER: BRC 5642 of 2017

APPEAL NUMBER: NOA 68 of 2018

DATE DELIVERED: 12 April 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Brisbane

JUDGMENT OF: Strickland, Watts & Austin JJ

HEARING DATE: 14 February 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 28 June 2018

LOWER COURT MNC: [2018] FCCA 1820

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Hartnett

SOLICITOR FOR THE APPELLANT: Kilmartin Knyvett Lawyers

THE FIRST RESPONDENT: In person

COUNSEL FOR THE SECOND 

RESPONDENT:

Ms Horsley

SOLICITOR FOR THE SECOND

RESPONDENT:

Mills Oakley

Orders

1. Leave to appeal be granted.

2. The appeal be allowed and Order 1 made on 28 June 2018 be set aside.

3. The Amended Initiating Application filed by the appellant on 30 January 2018 is remitted to the Federal Circuit Court of Australia for re-hearing by a judge other than Judge Cassidy.

4. The appellant be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

5. The appellant be granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the re-hearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Michar & Baileford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 68 of 2018
File Number: BRC 5642 of 2017

Mr Michar

Appellant

And

Ms Baileford

First Respondent

And

Child Support Registrar
Second Respondent

REASONS FOR JUDGMENT

1. By an Amended Notice of Appeal filed on 30 November 2018, Mr Michar (“the appellant”) seeks leave to appeal and, if granted, appeals against the order made on 28 June 2018 by a judge of the Federal Circuit Court of Australia dismissing his application for leave to pursue an application to, in effect, review the quantum of his child support liability.

2. The application for leave and, if granted, the appeal were both resisted by Ms Baileford (“the respondent”).

3. The Child Support Registrar (“the Registrar”) was a party to the proceedings at first instance, but withdrew prior to the hearing. The Registrar was joined as a party to the appeal and this time chose to participate, but neither supported nor opposed the application for leave or the appeal.

4. For the reasons which follow, leave to appeal should be granted and the appeal should succeed.

History

1. The appellant and the respondent have twin daughters, born in 2004. They are now 14 years of age. They live with the respondent.

2. Following the parents’ separation, the respondent sought that the Registrar collect child support from the appellant in respect of the children. The respondent told the primary judge that occurred in July 2007, but the Registrar confirmed in the appeal it was in August 2006, which her Honour correctly recorded. Nothing in the appeal turns on the discrepancy.

3. Many years later, in June 2017, the Registrar commenced proceedings in the Federal Circuit Court seeking to enforce the appellant’s payment of child support arrears. Orders were then made on 17 July 2017 which provided for:

   (a)The appellant to pay the child support debt due to the Registrar within 90 days (Order 1), which debt was declared to be $167,414.91, inclusive of penalties; or alternatively

   (b)If the appellant applied within 28 days to “have his liability reviewed”, then for him to pay weekly instalments of $250 to the Registrar and any balance by lump sum within 90 days of the determination of the review application (Order 2); and otherwise

   (c)The appellant’s payment of the Registrar’s costs of the proceedings, his restraint from alienating property, and miscellaneous default and procedural directions (Orders 3-6).

4. On 14 August 2017, in intended compliance with Order 2, the appellant filed an application with the Federal Circuit Court in the same proceedings to review his child support liability, which he later amended on 30 January 2018. The amendment altered the application in three material respects: to join the respondent as a party, in addition to the Registrar; to extend the historical period over which he wanted his child support liability reviewed; and to revise the amount to which he wanted his past child support liability quantified.

5. Effectively, the appellant sought leave to review his child support liability for the period of seven years immediately preceding the date upon which he filed his amended application. However, the primary judge was not empowered to simply “review” the parties’ child support history in an unconfined or unstructured way, as the appellant’s application tended to imply, since the remedial powers of the Court are proscribed by s 118 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”). Instead, the primary judge confirmed with the appellant that he wanted his “child support income amount” varied over the preceding seven years, which remedy was available under s 118(1)(c) of the Assessment Act.

6. Although it was not clear from the face of the relief sought in the appellant’s amended application, in reality, it must have actually comprised two separate applications, namely:

   (a)An application to vary the appellant’s “child support income” for the period of 18 months immediately preceding the date of filing of the amended application (under s 116 of the Assessment Act), since such an application could be made as of right and was not conditional upon the grant of leave; and

   (b)An application for leave to apply to vary the appellant’s “child support income” for an additional antecedent period of five years and six months (under ss 111(1) and 112 of the Assessment Act), so that the review period comprised the maximum permissible seven years in all.

7. The Registrar did not participate in the hearing before the primary judge on 24 April 2018 to challenge the appellant’s amended application. The contest was between only the appellant and the respondent, both of whom were without legal representation. It was confirmed to us in the appeal that the primary judge, the appellant, and the respondent all conducted the hearing on the basis that the only application under consideration was an application for leave to apply to vary the appellant’s child support income for the entire seven years immediately preceding it, mistakenly overlooking that leave was not required by the appellant to pursue his application to vary his child support income over the immediately preceding 18 months (subject to the requirements of s 116 of the Assessment Act being met).

8. The evidence filed by the appellant and the respondent was inconsistent. The appellant alleged he had paid far more child support than the respondent admitted and, upon reconciliation of his liability and payments, he was actually slightly in credit rather than debit, which the respondent refuted. Despite the contradiction, each party expressly abstained from cross-examining the other when the primary judge extended them an invitation to do so.

9. One aspect of the evidence was uncontroversial. The appellant’s annual tax returns, lodged with the Australian Taxation Office (“ATO”) for the financial years between 2011 and 2016, disclosed quite different annual incomes from the provisional amounts the Registrar used to assess his child support liability from time to time. For four of those six years, the appellant’s annual taxable income was significantly less than the amounts the Registrar assumed he earned. Consequently, the assessments of the appellant’s child support liability were significantly greater than they would have been had the Registrar been furnished with his tax returns in a timely fashion, which in turn resulted in a much higher level of arrears than the appellant considered was justified.

10. There was a factual dispute before the primary judge about whether the appellant promptly lodged his tax returns with the ATO, but even if he did, he acknowledged he did not furnish the Registrar with them. Nor did he make any administrative application to vary his child support assessments as they issued from the Registrar from time to time, even though he must have known they did not accurately reflect what he contended was his true income. Accordingly, no criticism at all can be levelled at the Registrar for relying upon “adjusted taxable income” calculations to assess the appellant’s child support liability under Part 5 of the Assessment Act.

11. The primary judge acknowledged the “significant differences” between the appellant’s actual taxable income and his adjusted child support income over the relevant years, but declined to grant him leave to review the quantum of his “child support income” over any part of the preceding seven year period because it was concluded he was the author of his own misfortune, his explanation for delay was inadequate, and the hardship he would suffer was no greater than the hardship the respondent would suffer. Her Honour expressed the conclusions as follows:

    42.…In balancing the considerations, I consider the [appellant]’s explanation for the delay in bringing information to the Child Support Agency [“the CSA”] that would have altered his assessments is unsatisfactory.

    43.I accept that the [appellant] has demonstrated hardship if leave is not granted. However, this must be balanced against the hardship to the [respondent] and the children if I grant the leave. The [respondent] and the children have received very limited child support since the CSA became involved in the collection in 2006.

    44.I consider the [appellant]’s failure to lodge the relevant tax returns makes him the author of his own difficulties, and I am not persuaded that I should exercise my discretion to grant leave to the [appellant] pursuant to section 111 of the Child Support (Assessment) Act 1989 (Cth).

12. The primary judge ordered the dismissal of the appellant’s entire amended application on 28 June 2018, which is the order appealed.

Leave to appeal

1. The present appeal cannot be brought without the grant of leave pursuant to s 102A of the Assessment Act.

2. On 8 October 2018, the Appeals Registrar ordered the application for leave to be heard conjointly with the appeal.

3. The test for the grant of such leave is, ordinarily, whether the decision of the court below is attended by sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (see Medlow & Medlow (2016) FLC 93-692 at [57]; Lindsey & Christie [2016] FamCAFC 132 at [39]; Eames & Eames (2018) FLC 93-866 at [80]-[82]). As a guideline test, it is not applied rigidly. The discretion must always remain unfettered.

4. The appellant relied upon the strength of his appeal to demonstrate the error of the decision below and the financial hardship he would consequently suffer if deprived of leave to appeal, which is no doubt why the Appeals Registrar ordered the application for leave and the appeal be heard together. They cover common factual and legal territory.

5. The appeal was sound because it exposed material errors by the primary judge and the appellant would suffer substantial injustice if deprived of leave to prosecute it. The appellant contended the aggregated deficit between his actual and adjusted annual income over the relevant review period was $441,777. By reason of the enforceable orders made on 17 July 2017, the appellant is indebted to the Registrar for child support arrears and penalties, quantified at in excess of $167,000. The appellant’s case before the primary judge in April 2018 was that he owed no debt at all. Those few facts poignantly demonstrate the prejudice the appellant would suffer if leave to appeal was denied, so leave is granted for him to prosecute the appeal.

The appeal

1. The appellant contended the primary judge erred by denying him leave under s 112(1) of the Assessment Act to press his review application for two different reasons: first, her Honour determined the application in quite a different way from that which she foreshadowed to the parties during the hearing, which was productive of procedural unfairness to him; and secondly, in considering whether to grant leave, her Honour’s discretion miscarried by the misapplication of statutory criteria she was obliged to take into account. Both of those contentions are correct, though not necessarily for precisely all of the reasons particularised by the appellant.

2. Although not a ground of appeal, the primary judge’s omission to give any consideration at all to the application which may have been available to the appellant as of right, under s 116 of the Assessment Act, to vary his child support income over the preceding period of 18 months loomed large as an issue in the appeal. That is because appeals to this Court are conducted as re-hearings, which process requires the appellate court to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law and to correct error when it is identified (see Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]; Warren v Coombes (1979) 142 CLR 531 at 553).

3. Having identified the omission, induced as it was by the manner in which the appellant and the respondent conducted the hearing before the primary judge, we need say little more about it because the grounds of appeal revealed other errors requiring the appeal to be upheld and the remitter of the appellant’s application. If the appellant seeks to rely upon s 116(1)(b)(i) of the Assessment Act in the re-hearing in respect of the period of 18 months immediately before the amended application was filed, the applicability of that provision will need to be squarely confronted. Before us, the Registrar foreshadowed the contention, without developing any argument to support it, that neither the appellant’s application for leave pursuant to s 111 of the Assessment Act nor the Registrar’s application for enforcement was an “application” which would enliven s 116(1)(b)(i) of the Assessment Act.

4. We turn then to the appellant’s grounds of appeal, which concern the primary judge’s exercise of discretion in relation to the application for leave to apply to vary his child support income over the preceding seven years.

5. During the hearing, the disparity between the appellant’s actual and adjusted annual income was discussed by the primary judge with the appellant in the following way:

   [HER HONOUR]: If the income has been assessed at a different rate from what was correct, then I will be making orders to change that. There’s no doubt about that.

   [THE APPELLANT]: Okay…

   (Transcript 24 April 2018, p.14 lines 30-33)

6. The appellant submitted, and it is accepted, that he reasonably understood from the exchange that, provided he demonstrated the disparity between his actual and adjusted annual income, his application for leave to apply for variation of the child support liability would succeed. As it transpired, even though the primary judge accepted the “significant differences” between his actual taxable income and his adjusted child support income over the relevant years, his application for leave to apply was dismissed.

7. After the discourse between the primary judge and the appellant concluded, the respondent was invited to make her submissions, during which the child support arrears and the disparity between the appellant’s actual and adjusted income were discussed between them in the following way:

   [HER HONOUR]: Yes. But [the quantum of arrears is] only dependent on what [the Registrar] assess[es] his income to be. If I find it’s a different amount, that [section] 116 falls away.

   (Transcript 24 April 2018, p.16 lines 46-47)

   [HER HONOUR]: I understand…he has failed to be proactive, that’s a bad thing. But if he doesn’t have the capacity or the income, then the debt should never have arisen. Do you know what I mean?

   (Transcript 24 April 2018, p.17 lines 31-34)

   [THE RESPONDENT]: …But at the end of the day, this was a preventable situation.

   [HER HONOUR]: Yes, it was…but…if [the child support] was never…due and owing because of a discrepancy in the income, it’s difficult to demonstrate hardship. If you had received [the child support] and [there is] an order for repayment, totally different situation. And he has basically indicated that he’s not seeking any order for repayment, if I make findings in favour of him, and he’s happy to let the loss lie where it falls.

   (Transcript 24 April 2018, p.18 lines 1-10)

   [HER HONOUR]: That’s the point about that section [of the Assessment Act]. It’s for people that don’t get around to doing things. It’s like a catchall that says…“People are slack. We know they’re slack. And we’re not going to penalise them to the extent where they get huge debts that can’t be rectified once they get their act together”. That’s the point of the section.

   (Transcript 24 April 2018, p.18 lines 28-32)

1. Having heard those further exchanges, the appellant could not have been left in any real doubt that it was unnecessary for him to say anything more because his application was bound to succeed. The discrepancy between his actual and adjusted income was uncontroversial and he was not seeking any order compelling the respondent’s repayment to him of any amount he had overpaid.

2. The appellant’s leave application could not have been determined in the manner the primary judge explained to the parties at the hearing because her Honour was required to have regard to the factors prescribed by s 112(4) of the Assessment Act. That entailed her Honour finding where any responsibility for the delay should lie, considering the reasons advanced to explain the delay, considering the hardship suffered by the applicant for leave if the leave is refused and considering the hardship suffered by the respondent if the leave is granted.

3. Of those considerations, during the hearing, the primary judge led the appellant to believe that his delay in seeking his remedy was effectively disregarded as a material consideration and there was no relevant hardship to the respondent because the appellant was not seeking to recover from her any overpayment. Although not legally represented, the appellant was not expressly invited by the primary judge to address the mandatory considerations under s 112(4) of the Assessment Act and he was dissuaded from making any further submissions once it was established that he actually earned less than the Registrar had provisionally assumed.

4. Contrary to his expectations, in the reasons for judgment published about two months later, the primary judge found the appellant’s delay in furnishing his tax returns to the Registrar (and hence, implicitly, his delay in pursuing the review of his past child support assessments based on the use of an incorrect “child support income”) to be important and his explanation for it to be unsatisfactory. 

5. The hearing was conducted by the primary judge such as to induce in the appellant an expectation that his application would succeed, in which event he need not make any further submissions. Expectations created by a judge during a hearing can, and often will, affect the practical content of the requirement for procedural fairness, though the test remains one of unfairness, not merely the departure from a representation. Not every departure from a stated intention by a judge necessarily involves unfairness, even if it defeats a litigant’s expectation (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 12-13). Although it might not do so in every case, it did in this case.

6. The circumstances at hand are not unlike those in Faulkes & Tomkins (2018) FLC 93-854, in which case the Full Court held (at [17]-[25]) the appellant was denied procedural fairness when the primary judge assured her during the hearing her evidence was accepted and she could expect certain orders would be made in reliance upon it, but then recanted once judgment was reserved and made contrary orders, which seemingly entailed rejection of the evidence. The primary judge was undoubtedly entitled to re-consider the orders which would be made once judgment was reserved but, in those circumstances, to ensure the appellant was treated with procedural fairness, it was necessary to re-list the proceedings and at least invite her further submissions on the point. The appellant altered the way in which she conducted the hearing due to the expectation created by the primary judge’s assurance.

7. Similarly, here, the primary judge assured the appellant his application for leave to vary his “child support income” over preceding years would succeed, given the uncontentious discrepancy between his actual and adjusted income over the relevant review period. When the primary judge reconsidered that outcome following the reservation of judgment, to ensure procedural fairness, she should have re-listed the matter and invited further submissions from the appellant in relation to the factors prescribed by s 112(4) of the Assessment Act, as they applied to the available evidence.

8. Procedural fairness is an essential characteristic of any judicial proceeding (see RCB v Honourable Justice Forrest (2012) 247 CLR 304 at 309, 321), the denial of which will result in a successful appeal and a new trial if it was material to the ultimate outcome (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).There could be little doubt it was material in this instance.

9. As to the decision itself, the primary judge was required to consider both the hardship to the appellant by his denial of leave and the hardship to the respondent caused by the grant of leave. The primary judge did the former (though arguably insufficiently) but not the latter.

10. In his financial statement, which was read in evidence and was not challenged, the appellant deposed to his debts (excluding the contested child support debt) exceeding the value of his assets and his receipt of an income which was barely sufficient to meet his recurrent expenses. The appellant submitted that, if he was denied leave to challenge the computation of the past child support assessments, he might be bankrupted by the Registrar and he might lose his family home when the existing child support arrears were enforced against him. The primary judge doubted he would be bankrupted, but acknowledged he might lose his home, so those features of the evidence were at least taken into account.    

11. However, the grounds of appeal contended that insufficient weight was attributed to those features of the evidence by the primary judge, which contention had some force given the disputed child support arrears and penalties were quantified at around $167,000. The prejudice to the appellant in not being permitted to try and demonstrate the absence of his liability for that sum, or anything like it, and the subsequent enforcement of a debt against him of that magnitude is obvious enough. The Registrar correctly submitted that an appeal should not succeed on a complaint about the attribution of inadequate weight to relevant considerations unless the error constructively amounts to failure to exercise the discretion (see Lovell vLovell (1950) 81 CLR 513 at 519), implying the appellant’s submission should fail, but it is really unnecessary to reach a concluded view on this aspect of the appeal, given both the procedural unfairness we have already discussed and the following error.

12. In respect of the respondent, the primary judge found she had received “little or no child support” and so, although she had been primarily responsible for the financial support of the children, her obligation to also supervise and care for them confined her employment opportunities to only part-time work and thereby limited her earning capacity, causing her hardship. But that was hardship she endured because of the paucity of child support she received from the appellant over numerous preceding years. It was not hardship she would suffer if the appellant was granted leave to pursue his review application which, if granted, might either succeed or fail. Section 112(4)(c) of the Assessment Act required the primary judge to consider the hardship she would suffer if the appellant was granted leave to pursue his application, not the hardship she had already endured due to impecuniosity. While s 112(5) of the Assessment Act might well have permitted the latter consideration to be taken into account, the exercise of discretion miscarried because the primary judge failed to correctly take into account the material factor prescribed by s 112(4)(c) of the Assessment Act. As it was not even taken into account, it could not be balanced against the countervailing consideration of the hardship the appellant would suffer if leave was denied (s 112(4)(b)).

13. Had the appellant been granted leave to pursue his application, one may wonder what hardship, if any, the respondent would then have suffered. Both parties were without legal representation, so she would not have been disadvantaged by conducting her case against lawyers retained by the appellant. She would have been free to contest the appellant’s substantive application, to vindicate the existing quantum of the child support arrears, and to justify the dismissal of the substantive application. She was apparently already armed with the evidence she considered sufficient to do so. If she failed, it would be because her defence of the appellant’s substantive application was without merit and there would be no prejudice in her being deprived of money to which she was never entitled. The appellant had already conceded he would not seek any order compelling the respondent to refund any amount by which she had been overpaid, so she would not face the hardship of trying to refund money she had long since spent. None of those considerations were taken into account by the primary judge in the balancing process.

14. The Registrar submitted that other considerations would have supported the primary judge’s determination to refuse the appellant leave to press his application, had they been considered. They were said to be the appellant’s failure to lodge tax returns in a timely way and his failure to avail himself of the administrative review provisions of the Assessment Act before the Registrar began enforcement proceedings against him in June 2017. That may be so, but they were not considerations taken into account by the primary judge because the Registrar withdrew from the proceedings and did not make any submissions to that effect. Nor were submissions to that effect made by the respondent. While such submissions may indeed be available on the question of leave at first instance pursuant to s 112(5) of the Assessment Act, they are not considerations which now affect the grant of leave to appeal under s 102A of the Assessment Act.

15. Undoubtedly, the Registrar was correct to submit to us that the intent enshrined in the Assessment Act is to encourage paying parents to meet their child support obligations on time, to encourage parents’ timely use of administrative rather than litigious process to review assessments, and to discourage the retrospective review of assessments over protracted historical periods, but they will be considerations for the judge who re-hears the appellant’s application.

Conclusion and costs

1. Leave to appeal should be granted and the appeal allowed. Order 1 made on 28 June 2018 should be set aside and the appellant’s amended application filed on 30 January 2018 should be remitted to the Federal Circuit Court of Australia for re-hearing by a judge other than Judge Cassidy.

2. In the event leave to appeal was granted and the appeal succeeded, the appellant did not seek costs against the respondent, inferentially because he acknowledged there was no reasonable basis upon which to make such an application. He did, however, seek costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the re-hearing. Such certificates should be granted. The appeal was heard and determined on its merits and succeeded by reason of the primary judge’s errors of law.

3. The respondent was not legally represented in the appeal. She had no costs to recoup so there is no reason to grant her any costs certificate for the appeal. She did not apply for a costs certificate in respect of the re-hearing and, since she was not legally represented at first instance and, we impute, probably will again not be legally represented at the re-hearing, we decline to grant her any costs certificate for the re-hearing.

4. The Registrar acknowledged he was not entitled to any costs certificate by reason of the provisions of s 14 of the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Watts & Austin JJ) delivered on 12 April 2019.

Associate:     

Date: 12 April 2019